People v. Clark

Mikoll, J. P.

(dissenting). I respectfully dissent.

The majority, while conceding that the order of protection was defective, nonetheless holds that its defects were cured by the Grand Jury testimony of the arresting State Trooper that the Town Justice orally advised defendant of the terms of the order and that it applied to his wife. I disagree. While valid orders of protection may be given orally in court (see, Penal Law § 120.14; People v McCowan, 85 NY2d 985), “the contents of the order and the conduct it prohibits” must be communicated to the defendant (People v McCowan, supra, at 987). The People produced no competent testimony establishing these essential elements. Offering neither a transcript of the arraignment proceeding nor the testimony of the arraigning Justice, the People relied solely on the Trooper’s testimony that defendant was told that “he wasn’t to have any contact with his wife and other specific code of conduct rules”. While such testimony could properly have established defendant’s receipt and notice of the terms of an otherwise valid order, it was clearly hearsay and inadmissible to establish any substantive terms thereof. Moreover, contrary to the majority’s suggestion that the sole deficiency in the order was its omission of the name of defendant’s wife, County Court found that the order was wholly inadequate to advise defendant of the conduct proscribed and that the Trooper’s expansive description thereof went “far beyond the express terms of the written order”.

I would, therefore, affirm the order of County Court.

Ordered that the order is modified, on the law, by reversing so much thereof as granted the motion dismissing count one of the indictment; motion denied to that extent and said count is reinstated; and, as so modified, affirmed.